SHOULD CLAIMS BASED ON AFRICAN-AMERICAN SLAVERY BE LITIGATED IN THE COURTS? AND IF SO, HOW?

This article is Part Two of a two-part series by Professor Sebok on the possibility of reparations for African-American slavery. Part One of this series appears on Writ in the archive of Professor Sebok's articles, along with Parts One and Two of his earlier series of articles on reparations for Holocaust forced labor.  Ed.

In Part One of this two-part series of columns, I explored the historical and doctrinal changes that have brought together civil rights attorneys and class action lawyers to pursue damages for African-Americans' slavery using the tort law system. In this second Part, I want to explore the much more difficult questions of how these moral claims might also be framed as legal ones, and whether they should be thus framed in the first place.

Who Are the Defendants?

As one of the class action attorneys participating in the "Reparations Assessment Group" commented in Harpers Magazine this year, the first question in a class action is never "who are the plaintiffs." The first question is: "who are the defendants?" Asking that question in the context of a possible tort case based upon African-American slavery leads to a complex answer.

To begin, the federal government is an unlikely defendant. It has been sued in the past by descendants of African slaves for a number of kinds of damages, and such suits have been dismissed. In 1995, the Ninth Circuit affirmed that the Federal Tort Claims Act  which waives the government's "sovereign immunity" in some situations, but retains it in others  bars such suits.

Similarly, while there has been scant discussion of suits against the state governments of the states that made up the former Confederacy, I would imagine that these states also protected by sovereign immunity.

This leaves individuals and corporations. It is possible that some of the great families of the South, and perhaps even Northern families involved in the maritime slave trade, have passed on wealth derived from slavery to individual descendants in amounts large enough to be both identifiable as the profits of slavery, and worth pursuingbut I doubt it. Furthermore, the law does, at some point, protect innocent holders of stolen and wrongfully obtained property  and whether or not the descendants of the slaveholders are properly considered morally innocent, they would likely be considered legally innocent, since they were not involved in the original torts.

Finally, corporations are subject to the pressures of public opinion and media criticism in ways that make them often more willing to settle lawsuits that connect their products to controversy. Significantly, the insurance company Aetna recently apologized for having sold insurance to slave owners for the value of the slaves. Even though Aetna did not itself use slave labor, it felt that by selling insurance, it could be seen as having accepted the Southern view that people could be property, and having helped support the slave economy. (Of course, Aetna still refuses to pay compensation beyond its apology  but the apology alone suggests, at a minimum, a concern over what the public will think, and that is the same type of concern that often inspires settlement.)

What Would the Causes Of Action Be?

After deciding whom to sue, the slavery reparations team will also have to answer another question: what would the legal claims  or, in lawyers' terminology, the "causes of action," be?

It is premature to draw too many conclusions about what is in the minds of the Reparations Assessment Group's members, but the truth is, the lawsuits could only follow a few well-worn paths. As I mentioned in my last column, slavery, despite the political and historical rationalizations that were erected by its apologists, represented, among other things, an incalculably large number of torts inflicted upon millions and millions of Africans and their descendants born in America.

To kidnap someone is not just a crime, but also a tort as is beating her, forcing her to work without pay, separating her from her family. The list could go on and on. Each of these torts can be the basis of a civil suit for money damages, both compensatory and punitive.

The Statute of Limitations Problem

As the Reparations Assessment Group has acknowledged, there is a very serious problem with framing their claim as a demand for damages in tort: the statute of limitations, which sets a finite number of years during which a claim may be brought.

Most statute of limitations for tort claims are between one and six years after the victim (or his survivor) discovers the wrongful act by the defendant. It is hard to see how, for these claims, that period of time has not come and gone.

Granted, a statute of limitations may be extended if the defendant has actively concealed his wrongdoing. And it may even be the case that by all rights, the statute of limitations for the torts of slavery should be extended because African-Americans were not allowed access to the courts in any meaningful way for many, many years  even long after the Thirteenth Amendment was passed  but a court would probably find that, at least by the 1970's, African-Americans can be said to have had reasonably fair court access. And even starting the clock ticking then would mean many of the statutes have run.

Solving the Limitations Problem: Can the Unjust Enrichment Doctrine Work?

There are a few ways around the statute of limitations problem. One would be to change the statute of limitations by legislation. (As California did in order to insure that certain Holocaust suits would not be time-barred.) Another is to base the tort claims on international law, a move that might dramatically affect the applicability of statute of limitations.

But the most frequently discussed maneuver is to change the nature of the claim. Some  including Randall Robinson, the author of The Debt: What America Owes to Blacks  have argued that the simplest, most direct way to frame a legal claim would be to pursue a claim for unjust enrichment against anyone who currently possesses property (or the fruits of property) that resulted from the torts inflicted on African-Americans during slavery.

Unjust enrichment has traditionally been a sleepy backwater of American law. It is usually viewed as a doctrine governing what remedy a plaintiff who has succeeded on another cause of action may request  not as a cause of action in itself.

Recently, however, unjust enrichment causes of action have been popping up in some interesting cases. For example, one of the claims made by Richard Scruggs (a Reparations Assessment Group lawyer) in his lawsuit, on behalf of Mississippi against the tobacco industry, was that tobacco companies were unjustly enriched by Mississippi's health insurance payments. This claim was copied by many other states, and arguably played a critical role in producing a $368 billion settlement. And it was stated as a claim in itself  not just a request for a remedy.

Since unjust enrichment is an "equitable" doctrineit merely asks the court to do justice, or "equity," by returning lost property to its rightful ownerit is not affected by statute of limitations in exactly the same way as claims for damages in tort might be. Still, prevailing on an unjust enrichment claim is no walk in the park.

Many people think Scruggs' Mississippi unjust enrichment claim was a bluff that would have collapsed in front of an alert appellate court. There are doctrines such as laches (which faults plaintiffs for waiting too long to sue) and other equitable concerns that make it difficult for an aggrieved party to sue for the return of property after very long periods of time. Still, it might be argued that claims based on slavery are so different from typical claims for restitution that the equities will always weigh in favor of the plaintiffs.

A Concern about the Use of an Unjust Enrichment Claim

Nonetheless, I want to raise a cautionary note about approaching slavery from the perspective of unjust enrichment. Law is often a powerful tool to help achieve nonlegal ends. But law contains its own messages as well. The words we use to claim victory over our opponents do not just affect the court and jury; they shape us as well. And that could happen here.

But our analysis cannot end there. A further question must be asked: what were the private wrongs? The virtue of tort law is that it gives us a vocabulary with which to describe and remedy wrongful treatment by one person to another. The focus is on the wrong done, and not only the damage caused.

Bringing tort claims such as claims for assault, battery, kidnapping, and false imprisonment would correctly highlight the wrongs done in slavery  and, crucially, the basic wrong of slavery itself. Slavery would have been wrong even if, as is sometime said of the Greeks in Roman times, the slaves were treated well.

In contrast, bringing an unjust enrichment claim would focus on the shifts of wealth and property that slavery caused. I well understand why the Reparations Assessment Group wants to step away from tort law and towards claims rooted in unjust enrichment; the barriers of statute of limitations seem too high. But this step comes with a cost: to call the wrong of slavery a failure to pay for forced labor is to suggest that the wrong of slavery is that, after they were kidnapped, beaten, and abused, Africans and their descendants were not salaried.

It might be said that my concerns are misplaced, for no one expects full damages to be paid or even calculated. These lawsuits are symbolic, and hence their goal is to open up a political dialogue about slavery and the unacknowledged depth of the injuries it caused to millions of individuals.

Perhaps. But it is precisely because law does operate on the level of symbolism that I am concerned. Some are discomforted by the fact the World Jewish Congress has chosen the "symbol" of lost wages to represent the horror of the Holocaust. I am one of them. It seems to be an inapt symbol; one that does little honor to those who died, and one that seems to offer little in the way of education to those who want to know why the Holocaust was a horror.

I have the same fear for a class action for the lost wages of African American slaves, were such a suit to be brought by the Reparations Assessment Group. One should choose a symbol because it says what one means, not because it is the only way to win a lawsuit.

Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School where he teaches Torts, among other subjects.